DPP v Di Nunzio
[2004] VSCA 78
•7 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| ANTHONY DI NUNZIO |
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JUDGES: | CHARLES, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 April 2004 | |
DATE OF JUDGMENT: | 7 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 78 | |
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CRIMINAL LAW – Sentencing – Crown appeal – Culpable driving (by negligence and under influence), negligently causing serious injury and recklessly endangering life – Driving drunk wrong way on freeway while disqualified – Prior convictions for exceeding prescribed concentration (3), driving while disqualified and while unlicensed – Respondent aware of drinking problem – Drove as pleased despite disqualification – Guilty pleas, remorse, etc. - 7½ years’ imprisonment (including 7 for culpable driving) and 5-year non-parole period manifestly inadequate – Re-sentenced (by majority) to total of 8½ years with 6½-year non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the D.P.P. | Mr G. Horgan S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson Q.C. | Clarebrough Pica |
CHARLES, J.A.:
The circumstances of the offences, the prior criminal history of the respondent, and the arguments of counsel are all set out in the reasons prepared by Batt, J.A., and I gratefully adopt his Honour’s statement of them. I agree with his Honour that the sentencing judge erred in giving insufficient weight to specific deterrence in light of the respondent’s antecedent criminal history and the other aggravating factors summarised in par.[27] hereafter, and that in consequence the sentencing judge was led to impose a sentence on count 1 which was manifestly inadequate.
The respondent’s prior criminal history of driving offences before 24 November 2002 was extraordinary and showed blatant and continuing disregard for the law. By 22 November 2001 he had been convicted of driving a motor vehicle whilst having a blood alcohol content exceeding .05% on three separate occasions. He had been disqualified from holding a driving licence on four separate occasions. He had been found guilty of a variety of other traffic offences including exceeding the speed limit, driving in a careless manner, and disobeying a traffic control signal. In his record of interview conducted by police officers on 20 February 2003 the respondent said he had owned the Ford Probe motor car which he was driving on the night of Sunday 24 November 2002 for some two years beforehand. It therefore had been purchased in about February 2001. On 22 November 2001 he had been convicted of his third offence of driving with a blood alcohol content exceeding .05%, and his licence was cancelled and he was disqualified from obtaining any licence for two years effective from 5 August 2001. In the record of interview the respondent admitted that in the first year he had the car, he drove every day, and in the second year was driving to work and a few times at night. It follows that by 24 November 2002, he had been driving his car on virtually a daily basis, notwithstanding his disqualification, for at least a year. On the night of 24 November 2002 he became intoxicated and began driving although he had realised beforehand that he was likely to become unfit to drive as a result of the alcohol he was in the course of consuming. His driving that night is described in detail in the reasons of Batt, J.A. at par.[16]. It was virtually certain that an accident would occur on the Eastern Freeway that night in the vicinity of Doncaster Road in consequence of the respondent’s driving, and that innocent travellers on the Freeway would be killed or seriously injured.
Evidence was given during the plea of the respondent’s great remorse, guilt and deep distress. One might add that it would have been astonishing and quite unnatural if he had felt anything other than devastation at the appalling consequences of his own actions. He was, however, entitled to have all this taken into account, together with his early pleas of guilty and his injuries in the consideration of sentence.
The evidence during the plea was also significant in that it demonstrated that he had hidden his drinking and his driving offences and disqualifications from his family and from most of those who knew him at work. Vincent Lucchini, an On Cue Call centre manager, and the respondent’s manager at work, had seen him drink only tomato juice at social events. Another friend from work, Yvonne Dana, also said that she had never seen the respondent drink alcohol and that every time he went out he drank tomato juice. The respondent’s uncle, Peter Di Nunzio, had never seen the respondent drink alcohol. He had learned of the respondent’s first .05 offence in February 1996 but also had never seen him drink alcohol at family functions. He had not been aware of the respondent’s other .05 offences. Bruno Macri, a close friend who is a solicitor, said that he was aware of the respondent’s disqualifications and thus that he was driving. He said that he “always warned him about the repercussions of driving in that situation”. The respondent obviously did not heed these warnings.
There was also evidence given by Glen Brooks, of Phoenix Recovery Programs, a group and individual counsellor for alcoholism and drug dependence, of the co-operation given by the respondent, and his regret for what he had done. Mr Brooks thought it extremely unlikely that the respondent would ever offend again. Mr Brooks had, however, no professional qualifications and the prospect of
recidivism is notoriously difficult to forecast.
In my view none of the foregoing evidence, or the other matters mentioned by the sentencing judge, warranted the very considerable reduction in the weight to be given to specific deterrence which was adopted by his Honour. It is for these reasons that I agree with Batt, J.A. that the sentence imposed on count 1 was manifestly inadequate. I disagree only with the concluding paragraph of his Honour’s reasons.
I do not understand why the prosecutor at committal apparently committed the Crown to the position that cumulation of sentence should not be sought in relation to the sentence imposed on count 3, a position which the prosecutor at trial and Mr Horgan in this Court felt bound to accept. While accepting this concession, in this Court it was submitted by Mr Horgan that a total effective sentence of ten years would have been in the middle of the appropriate range in all the circumstances, a submission with which I agree.
After making a discount for double jeopardy, I would sentence the respondent on count 1 to eight years' imprisonment. I would leave standing the remaining individual sentences, and the order for cumulation of six months of the sentence imposed on count 2. The total effective sentence would therefore become eight-and-a-half years' imprisonment. I would fix a non-parole period of six-and-a-half years. Such an increase is, I think, certainly not to be described as “tinkering”. But, in any event, increases in sentence in director’s appeals are usually of a lesser order than variations in prisoner’s successful appeals against sentence because of the discount which must be given for double jeopardy.
The director’s appeal against sentence should accordingly be allowed.
BATT, J.A.:
On 17 December 2003 the respondent, Anthony Di Nunzio, who was born on 16 July 1971, pleaded guilty on arraignment in the County Court at Melbourne to
one count each of culpable driving causing death (count 1), negligently causing serious injury (count 2) and reckless conduct endangering life (count 3). The forms of culpability specified in count 1 were negligence and being under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. The negligent act specified in count 2 was driving and the reckless conduct specified in count 3 was driving a motor vehicle along the incorrect side of a freeway whilst under the influence of alcohol to the extent aforesaid. The respondent also pleaded guilty under s.359AA of the Crimes Act 1958 to two summary offences, namely, within three hours after driving having a sample of his blood taken in which the concentration of alcohol indicated by analysis to be present was more than the prescribed concentration (which was zero), namely 0.181% (charge 7) and driving while disqualified (charge 9). The maximum custodial penalties for the indictable offences were imprisonment for the following terms, namely, 20 years on count 1, 5 years on count 2 and 10 years on count 3. In addition, by virtue of s.89 of the Sentencing Act 1991 the sentencing judge was required in relation to counts 1 and 2 to cancel any driver licence held by the offender and to disqualify him from obtaining one for such time (not being less than 24 months) as the judge thought fit. (By reason of a prior conviction the respondent did not hold a licence.) The maximum penalties for the summary offences were, in the case of charge 7, a fine of $2,500 or three months’ imprisonment where, as here, the offence was a subsequent offence and, in the case of count 9, imprisonment for not less than a month and not more than two years where, as here again, the offence was a subsequent offence. In addition, the judge was required to disqualify the offender from obtaining a driver licence for 36 months in the case of charge 7.
The respondent admitted 12 prior convictions or findings of guilt of driving offences from five court appearances between July 1993 and November 2001. Details of those offences are set out in the summary appended to these reasons, but it is necessary to emphasise two aspects of the prior convictions, as I shall call them. First, the respondent had previously been convicted of driving while having a blood alcohol content exceeding .05% on no less than three occasions, as follows:
· on 29 February 1996 a charge was found proven (his blood alcohol reading having been 0.088%) and the matter adjourned for 12 months upon his entering into an undertaking to be of good behaviour with a special condition that he complete a drink-driving course;
· on 15 May 1997 he was convicted and fined $900 (his blood alcohol reading having been 0.104%), his licence was cancelled and he was disqualified from obtaining one for 20 months;
· on 22 November 2001 he was convicted (his blood alcohol reading having been 0.095%), sentenced to be released on a community based order and disqualified from obtaining a driver licence for two years.
Secondly, the respondent had a previous conviction for unlicensed driving in May 1997 and one for driving while disqualified in February 1998. Moreover, the offences the subject of this appeal occurred within the two-year disqualification period imposed on 22 November 2001 with effect from 5 August 2001.
His Honour proceeded to hear a plea in mitigation of penalty, during which several exhibits, including eight detailed and powerful victim impact statements, were tendered and five witnesses as to the respondent’s character and his conduct and rehabilitation were called.
On the following day, 18 December 2003, his Honour sentenced the respondent to be imprisoned for the following terms:
Count 1 (culpable driving) - 7 years
Count 2 (negligently causing serious injury) - 18 months
Count 3 (reckless conduct endangering life) - 2 years
Charge 7 (exceeding prescribed concentration of alcohol) - 2 months
Charge 9 (driving while disqualified) - 3 months.His Honour directed that six months of the sentence on count 2 be served cumulatively upon that on count 1, so that the total effective sentence was 7½ years’ imprisonment. He ordered that a minimum of 5 years be served before the respondent should become eligible for parole. His Honour further ordered on each of count 1 and charge 7 that the respondent be disqualified from obtaining a licence for a period of five years. There was no pre-sentence detention.
By notice served on the respondent on 10 January 2004 the Director of Public Prosecutions has appealed to this Court against the sentence passed on the respondent on the ground that the sentence imposed in respect of each of counts 1, 2 and 3, the total effective sentence and the non-parole period are each manifestly inadequate. By way of particulars of that ground it is alleged that in imposing the individual terms of imprisonment, ordering cumulation and fixing the non-parole period, the sentencing judge –
(a)failed to reflect adequately the gravity of the offences generally and in this case in particular;
(b)failed to take into account or sufficiently into account general deterrence;
(c)failed to take into account or sufficiently into account specific deterrence;
(d)placed too much weight to mitigatory factors;
(e)gave insufficient weight to the respondent’s prior criminal history; and
(f)gave insufficient weight to the respondent’s being disqualified from driving at the time of the subject offending.
It is to be observed that the appeal is limited to the sentences of imprisonment imposed in respect of the indictable offences.[1] Further, it was agreed between the Crown and the respondent in the County Court that there should be concurrency between the sentences on counts 1 and 3 and the sentencing judge was prepared to act on that agreement. Before us Mr. Horgan treated himself as bound by the agreement, though stating, with some substance, that it was incorrect in law.
[1]Thus it does not extend to the period of disqualification from obtaining a driver licence, as to which it may be thought there is a question whether it is unduly lenient, nor does it extend to the failure to order disqualification on count 2.
Before the ground of appeal, so particularised, can be considered it is necessary to summarise the facts of the offences and some matters relating to the respondent. On Sunday, 24 November 2002 at about 4.50 a.m. the respondent was driving his motor vehicle on the Eastern Freeway, North Balwyn, when it collided with a vehicle driven by Adrian Bylok, a young man aged 21. At the time of the collision the respondent was driving in the wrong direction towards the city on the east-bound (out-bound) lanes of the freeway. The speed of his vehicle was later estimated as 75 k.p.h. and the speed of the deceased’s vehicle as 100 k.p.h. The cars collided head on. The vehicle of Mr. Bylok (whom I shall call “the deceased”) caught fire and he was incinerated. He died at the scene as a result of that and of the significant multiple injuries he sustained in the collision. The concentration of alcohol in the blood of the respondent, a sample of which was taken at 6.45 a.m. that day, was 0.181%. Those facts constitute the essence of count 1. The deceased’s front passenger, David Rowsell, managed to get out of the vehicle. He tried to extinguish the fire but was unsuccessful. He sustained physical injuries from which he had largely recovered at the time the respondent was sentenced but after the event he was diagnosed with, and was at the time of sentencing still suffering, severe post-traumatic stress disorder and a major depressive disorder (count 2). The respondent had been observed entering the freeway by turning right on to the exit ramp at Doncaster Road (instead of proceeding further along Doncaster Road, over the freeway, and taking the next right-hand turn on to the entry ramp for west-bound (in-bound) traffic to the city). To enter the freeway via the exit ramp as he did the respondent had either ignored or not seen a No Right Turn sign at the point of commencing his turn, a pair of No Entry signs as he entered the exit ramp and a pair of Wrong Way – Go Back signs further along the ramp. He had travelled approximately 1.2 kilometres west along the freeway before the collision. During this time other cars were forced to swerve to avoid colliding with the respondent’s car. These facts constitute count 3.
The freeway is a divided highway consisting of two carriageways separated by a concrete barrier. Each carriageway had provision for three lanes of traffic. The speed limit applicable at the place of collision was 100 k.p.h. At the time of the collision the road surface of the freeway was dry and in excellent condition, the weather was fine, it was dark but there was street lighting, visibility was excellent and traffic was light.
The explanation for the respondent’s driving is to be found in his conduct prior to the collision. Between 11 p.m. the previous evening and 4 a.m. on the Sunday morning he had been drinking at a nightclub at the Shopping Town Hotel in Williamsons Road, Doncaster. He was tired, having risen at 6 a.m. and worked until 2.00 or 3.00 p.m. concreting for his father. He had driven to the hotel from his home in Mulgrave. Shortly after arrival he handed his keys to a friend. The friend left the venue at 2 a.m. and returned the keys to the respondent, advising him to hand them to someone else. The nightclub closed at 4 a.m. At about 4.15 a.m. the respondent tried to enter the gaming section of the hotel but was refused entry by two hotel security staff because of his level of intoxication. They tried to dissuade him from driving and urged him to take a taxi. He appeared to comply, but later, eluding them, entered his car and drove from the hotel. When interviewed later by police as mentioned below, the respondent seems to have had no memory of his driving or his drinking after the first Scotch and Coke. It is approximately two and a quarter kilometres from the hotel along Doncaster Road to the exit ramp at the freeway.
The respondent himself was injured in the collision and trapped in his vehicle. Though conscious and orientated as to time, place and person, he was unable to state where he had been or where he was going. After being freed and attended by ambulance officers at the scene, he was air-lifted to the Alfred Hospital. His injuries included multiple lower limb fractures and chest trauma. On 19 December 2002 he was transferred to the Victorian Rehabilitation Centre, where he underwent multi-disciplinary rehabilitation, including being seen by a private drug and alcohol counsellor. He was discharged in March 2003, having made a significant recovery from his injuries, although there were some residual difficulties, particularly in the movement of his left ankle and toes, which prevented him from running.
The sentencing judge found, as he was entitled to do, that the respondent had (and knew he had) an alcohol problem, for, although his family and relatives rarely, if ever, saw him drinking, the evidence showed that he used to repair once a week or once a fortnight to licensed establishments, hand over his car keys to a friend, and engage in what appears to have been binge drinking. That conduct, which may have been an outlet for or response to shyness, accounts for his alcohol-related prior offences, the existence of which was, it seems, kept from his family. The respondent was, as he said in his interview with police, “knowledgeable” about the effects of alcohol on drivers and the dangers of drinking and driving as a result of doing drink driving courses and seeing TV advertisements. Further, as is apparent from charge 9, the respondent was at the time of offending disqualified from obtaining a licence. Moreover, he had continued to drive during periods of disqualification despite advice against that course from a close friend who was a solicitor.
On the other hand, there were mitigatory factors. The respondent was a quiet, caring, single man with a good work record. He had entered pleas of guilty at the earliest practical time. Besides his physical injuries, which, though he caused them, go in mitigation[2], he was, naturally, deeply distressed and remorseful for his offending. He was “devastated”. Entirely of his own accord he had written a letter of apology to his victim’s family which he produced at the end of his interview by police at the rehabilitation centre on 20 February 2003. He had read and digested all the victim impact statements. He had participated “absolutely co-operatively” in treatment and counselling for his alcohol problem, had attended meetings of Alcoholics Anonymous and had abstained from alcohol since the offending. His Honour found that he was resolved to maintain abstention in the future. He was also of the view that, despite the respondent’s prior convictions and in particular those for exceeding .05%, his prospects of successful rehabilitation were high. His remorse and (it seems clear, though this was not mentioned by his Honour until the next sentence) his prospects of rehabilitation led the judge to the view that specific deterrence did not loom large as a sentencing requirement in the case.
[2]R. v. Barci and Asling (1994) 76 A.Crim.R. 103 at 110-111 and R. v. Haddara (1997) 95 A.Crim.R. 108 at 108-9 and 113; compare R. v. Teh [2003] VSCA 169 and R. v. Daetz [2003] N.S.W.C.C.A. 216.
In the course of his sentencing remarks the judge stated that the respondent had offended in a most grievous way and that he must be taught in no uncertain terms that he must never offend in this way again, “although on this issue I am rather confident that you have already learnt this lesson.” Moreover, other road users must have it reinforced that the most serious consequences flow if they did what the respondent had done. The case was a bad example of culpable driving. The respondent’s culpability was high. He knew he had an alcohol problem. He had driven when alcohol-affected on three previous occasions and it was clear that he had a habit of handing over his keys to friends in case he over-imbibed, which in itself would have been creditable but here demonstrated his awareness of his problem. Here, despite attempts of others, the respondent had made the decision to drive. His Honour noted his flouting of the disqualification penalties. He discussed the various mitigatory factors already mentioned. In the course of doing so he expressed the view about specific deterrence already stated and also said that what he regarded as the respondent’s “high prospects of successful rehabilitation” were a positive factor and in that regard he took into account what counsel for the respondent before us described as his real, determined and extensive attempts at achieving his own rehabilitation. Balancing all relevant factors, both aggravating and mitigating, his Honour pronounced the sentence stated earlier.
The appeal was well argued on both sides. For the appellant it was submitted that the driving was egregious in the extreme. The respondent drove while disqualified. He drove from the hotel against advice. He drove the wrong way, ignoring or not seeing signs against that, and drove into ongoing traffic for 1.2 kilometres at 75 k.p.h. at the time of collision. Emphasis was placed on his prior convictions, and in particular those resulting in disqualification and those for exceeding the prescribed limit. It was submitted that it was apparent that he drove as and when he pleased despite the disqualifications. He was not permitted to drink and drive at all. It was pointed out, correctly, that for the offence of culpable driving general deterrence is of great importance as a sentencing purpose and that the judge had referred to it briefly only once, though, in my view, his Honour, from his other remarks, could not have been unaware of the importance, indeed general primacy, of general deterrence. It was then submitted that the respondent’s prior convictions and his flagrant breaches of disqualifications demonstrated the need for specific deterrence and that it was difficult to see upon what basis the judge could have considered that specific deterrence did not loom large. In light of his prior convictions, it was a fond wish that rehabilitation had been or would be achieved. As to the mitigatory factors summarised above, it was submitted that too much weight was attached by the judge to the consequences of the offending on the respondent himself, that his criminal history told against his rehabilitation prospects and that the pleas of guilty were entered in the face of an overwhelming Crown case where there is no reasonable prospect of acquittal. Despite that, it must, I consider, be said that they are still entitled to quite some weight.
For the respondent counsel emphasised and elaborated upon the mitigatory factors summarised in paragraph [21] above, pointing out that none was challenged by the prosecutor below and that all had been accepted by the sentencing judge and taken into account. Indeed, it was said, his Honour had given the matters much weight in mitigation, as he was entitled to do in his discretion. In those circumstances, it was open to the judge to impose sentence upon the basis that the respondent had entered his pleas at the earliest practical time; that the respondent had suffered and would continue to suffer by reason of the offending; that he had “high prospects”, that is, good prospects, of rehabilitation; and that reduced weight could be given to specific deterrence. It was open to his Honour to impose sentence on that basis notwithstanding the respondent’s prior convictions. It was pointed out that it was usually difficult to make out a particular that insufficient weight was given to a sentencing purpose such as specific deterrence and it was submitted that this Court should accept what were called his Honour’s “findings” relating to weight if they were open to him. His Honour had not said that no weight was to be given to specific deterrence and his statement that he did not consider that it loomed large as a sentencing requirement came three paragraphs after he had enunciated the relevant sentencing purposes, which had in fact been stated by the prosecutor in his opening remarks on the plea and been accepted as common ground. As to cumulation it was submitted that in accordance with the agreement between the Crown and the defence it was open to the judge not to direct cumulation between the sentence imposed on count 3 and that on count 1 and also that there could be no criticism of the cumulation of only six months of the sentence on count 2 on that on count 1 in light of decisions of the Court of Appeal since 1996. It was submitted in conclusion that the sentencing judge had been mindful of each and all of the sentencing principles and had identified each of the major sentencing purposes and that each of the individual sentences, the total effective sentence and the non-parole period was within range. They were not inconsistent with the “sentencing standards” established and maintained by this Court. Alternatively, this Court ought, in the exercise of its overriding discretion[3], not to intervene. Each of the components of the sentence was truly the result of his Honour’s considered instinctive synthesis and this Court should be especially reluctant to intervene on a Crown appeal. Finally, if it were to intervene, having regard to the (so-called) principle of “double jeopardy” it would be required to impose a substantially lesser sentence than it considered should have been imposed at first instance, with the consequence in this case of requiring the court to impose the same sentence, so that it should not intervene.[4]
[3]R. v. Boxtel [1994] 2 V.R. 98 at 104 and R. v. Clarke [1996] 2 V.R. 520 at 522-523.
[4]Compare R. v. Boxtel at 104-105.
The principles governing Director’s appeals are well known. A useful summary appears in the judgment of Charles, J.A. in R. v. Clarke[5]. I do not propose to re-state them here beyond mentioning two points. First, because of the nature of such appeals, they must, if they are to succeed, be brought to establish some point of principle, as, for example, where a sentence reveals such manifest inadequacy as to constitute error in principle or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience. Secondly, an appellate court hearing an appeal against sentence does not hear the matter anew and is not entitled to substitute its opinion for that of the sentencing judge merely because it considers the sentence inadequate or (in the case of an appeal by a convicted person) excessive. It may only interfere, relevantly, if the inadequacy is manifest.
[5][1996] 2 V.R. 520 at 522-523.
Both counsel discussed decisions of this Court concerning the heavier of recent sentences for culpable driving. Whilst that was helpful in a general way, it was, as to be expected, not helpful specifically and, though I have had regard to the discussion, it is unnecessary to record it here.
I turn to my conclusions. As Mr. Horgan stated, a total effective sentence of 7½ years’ imprisonment with a non-parole period of 5 years is in some respects (or, I suggest, contexts) reasonably severe; but severity always has to be determined by reference to the context of the offending and the offender. Here, culpable driving in particular is a serious offence as is shown by the penalty now prescribed by Parliament for it, and this was a very bad example of the offence. There was a most flagrant breach of the road traffic law coupled with a complete disregard, not merely on the night in question, of curial prohibition from driving by an offender who had three previous convictions for exceeding the prescribed concentration of alcohol in the blood, knew that he had a drinking problem, knew the effects of intoxication on driving and by his conduct showed that he was expecting to become intoxicated. He was, as he must have or at least should have realised, a candidate for killing someone if he drove. The respondent was of course not to be punished for his past offences or for the uncharged acts revealed by his admission of driving when he pleased during disqualification, but the antecedent criminal history is relevant to show that the subject offending was not an uncharacteristic aberration but the manifestation of a continuing attitude of disobedience of the law, so that retribution, deterrence and protection of society all indicated that a more severe penalty was warranted. His antecedent criminal history illuminated his moral culpability in the present case, showed his dangerous propensity and showed a need to impose condign punishment to deter him and others from committing further offences of a like kind. These propositions were laid down by four justices of the High Court in Veen v. The Queen [No.2][6] and confirmed by another four justices in Weininger v. The Queen[7].
[6](1988) 164 C.L.R. 465 at 477.
[7](2003) 77 A.L.J.R. 872 at 878, para.[32].
A sentence on count 1 higher by more than a mere year and somewhat greater cumulation between counts would, I consider, have been entirely unexceptionable on an appeal by the respondent. But that does not answer the question propounded in this appeal. That is whether the sentences in fact imposed were manifestly inadequate. Now, sentencing being inherently and par excellence a discretionary exercise, it must be recognised that there is no one correct sentence. There is a range of sentences which are open to a sentencing judge in the exercise of a sound discretionary judgment and considerable autonomy in the exercise of the discretion must be accorded to a sentencing judge. As pointed out in Dinsdale v. The Queen[8] manifest inadequacy of sentence is a conclusion and one which frequently does not admit of amplification. I have come to the conclusion that the sentencing judge erred in giving insufficient weight to specific deterrence in the light of the respondent’s antecedent criminal history, both charged and uncharged, and the other aggravating factors summarised towards the beginning of paragraph [18]. The respondent’s not unsurprising extreme remorse and his steps towards rehabilitation did not warrant the very considerable reduction in the weight to be given to specific deterrence that is adopted in his Honour’s reasons. In consequence, his Honour was led, in my view, to impose on count 1 a sentence which, despite the mitigating factors and in particular the plea of guilty, was manifestly inadequate.
[8](2000) 202 C.L.R. 321 at 325-326, para.[6].
The sentencing discretion is therefore re-opened, at least as regards the indictable offences. When, however, I come to consider the appropriate sentences and cumulation directions for the indictable offences, I find that I arrive at individual sentences and a total effective sentence which, after “discounting” for “double jeopardy”, are so little above the sentences actually imposed and the total effective sentence thus arrived at below that a principled exercise of discretion and the avoidance of an appearance of “tinkering” require that I should decline to re-sentence and, should instead propose, as I do, that the appeal be dismissed.
| Magistrates’ Court | Date | Offence | Disposition |
| Traffic Infringement Notice | 11 July 1993 | Exceeding speed limit by 30 kph or more but less than 40 kph. | Fine of $200. Licence suspended. Disqualification from obtaining licence for 1 month. |
| Sunshine | 29 February 1996 | Exceeding 0.05% [.088%]. | Matter proven; adjourned for 12 months on condition he complete a drink driving course. |
| Sunshine | 29 February 1996 | Driving in a careless manner. | Matter proven. Fine of $400. |
| Korumburra | 15 May 1997 | Exceeding 0.05% [0.104%]. | Convicted and fined $900. Licence cancelled. Disqualification from obtaining licence for 20 months. |
| Korumburra | 15 May 1997 | Disobeying a traffic control signal. | Convicted and fined $250. |
| Korumburra | 15 May 1997 | Driving an unregistered motor vehicle (one charge) and being an unlicensed driver (one charge). | Convicted. Aggregate fine of $500. |
| Korumburra | 26 February 1998 | Driving whilst disqualified. | Convicted and fined $750. Licence cancelled. Disqualification from obtaining licence for 18 months. |
| Korumburra | 26 February 1998 | Exceeding the speed limit. | Convicted and fined $300. Licence cancelled. Disqualification from obtaining licence for 3 months. |
| Korumburra | 26 February 1998 | Failing to send driver’s licence as requested | Convicted and fined $50. |
| Korumburra | 26 February 1998 | Driving a motor vehicle displaying obscured number plates. | Convicted and fined $50. |
| Melbourne | 22 November 2001 | Exceeding 0.05% [0.095%]. | Convicted and released on CBO for 6 months with condition that 70 hours community work be performed. Driver’s licence cancelled. Disqualification from obtaining any licence for 2 years. |
VINCENT, J.A.:
I agree with Charles, J.A., and for the reasons advanced by him, that this appeal should be allowed and that the respondent should be re-sentenced in the manner he proposes. I would add only a few further remarks of my own.
The level of criminality and personal culpability involved in the respondent’s conduct on the occasion under consideration was, in my opinion, extremely high. To say that he acted in contumelious disregard of the lives and wellbeing of others and of the laws designed to protect them is, when regard is had to his background of continuous offending, almost to understate the position.
When regarded from the perspectives of the seriousness of the conduct itself, the level of criminality involved in the applicant’s behaviour, the significance to be attached to the principle of general deterrence in the particular circumstances and the importance of specific deterrence as a sentencing consideration in this case, the sentence imposed was, I consider, so inadequate, that the intervention of this Court is required.
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